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Documentary Evidence Can Be Considered In CPLR 3211(a)(7) Motion to Dismiss/Disclaimer Not Specific Enough to Preclude Fraud Cause of Action

In a full-fledged opinion by Justice Renwick, with a concurring opinion by Justice DeGrasse, the First Department determined that arbitration could not be compelled in the absence of a specific, written agreement and a fraud cause of action against Goldman Sachs based upon the sale of mortgage-backed securities to the plaintiff hedge fund could go forward. The court concluded that documentary evidence submitted by the defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) was properly considered by Supreme Court, and the disclaimer relied upon by the defendant was not specific enough to warrant dismissal of the fraud cause of action:

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim … When documentary evidence is submitted by a defendant “the standard morphs from whether the plaintiff has stated a cause of action to whether it has one”… . * * *

The law is abundantly clear in this state that a buyer’s disclaimer of reliance cannot preclude a claim of justifiable reliance on the seller’s misrepresentations or omissions unless (1) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the seller’s knowledge … . Accordingly, only where a written contract contains a specific disclaimer of responsibility for extraneous representations, that is, a provision that the parties are not bound by or relying upon representations or omissions as to the specific matter, is a plaintiff precluded from later claiming fraud on the ground of a prior misrepresentation as to the specific matter… . Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc, 2014 NY Sliip Op 00587, 1st Dept 1-30-14

 

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Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should Be Applied to “Prior Bad Thoughts” in Journal Entries Discussed

In two concurring opinions, one by Judge Lippman and the other by Judge Abdus-Salaam, the Court of Appeals determined defendant did not raise an error warranting reversal.

The defendant contended (1) his attorney had personal interests which conflicted with her professional obligations to him, and (2) journal entries which were unrelated to the murder with which defendant was charged should not have been admitted in evidence.

One of defendant’s attorneys was under indictment by the same district attorney’s office for allegedly smuggling drugs to a client in jail. The defendant waived the conflict. The two judges disagreed about what such a conflict waiver should include and agreed the defendant’s conflict waiver was inadequate, but determined reversal was not required because there was an insufficient showing the conflict operated on the defense.

The journal entries were essentially “bad thoughts” about women other than the victim.  Judge Lippman determined that the “prior bad thoughts” should have been analyzed under the Molineux criteria for the admission of evidence of prior crimes and bad acts.  Judge Abdus-Salaam determined that Molineux should not be extended to such “prior bad thoughts,” which should simply be scrutinized under relevancy criteria. Both judges determined the erroneous admission of the “bad thoughts” evidence was harmless error.  People v Cortez, 225, CtApp 1-21-14

 

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Level Three Forcible Stop Not Justified, Convictions Reversed—Prior Arrest of One of the Defendants and the Fact that Both Defendants Were Running While Looking Back Over their Shoulders Was Not Enough to Justify the Forcible Stop

In a two separate full-fledged opinions by Justice Manzanet-Daniels, over dissents, the First Department reversed defendants’ convictions, finding that their motions to suppress should have been granted.  Defendants were stopped after the police observed them running at 4:40 am.  Both men, Thomas and Brown, were looking back over their shoulders as they ran.  Brown (but not Thomas) was known to the police as someone who “engaged in fraudulent accosting in that area…”. The First Department determined the stop was not justified for either defendant:

A level three forcible stop is constitutional only if the police have a “reasonable suspicion that a particular person was involved in a felony or misdemeanor” … . In determining whether the police officers had the requisite reasonable suspicion, only the information known to the officers prior to the forcible stop is relevant … .

The officers’ knowledge of defendant Brown’s prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion as to Brown; perforce, knowledge of Brown’s prior criminality was insufficient to justify a level three intrusion as to [Thomas], who was merely in Brown’s company and was not even known by the officers to have a criminal record. The police sergeant only knew [Thomas] by face, and the officer did not know [Thomas] personally and had never arrested him. … The motion court, in denying [Thomas’] motion to suppress, appears to have endorsed a theory of “guilt by association,” which must vigorously be rejected.

 “[A] stop based on no more than that a suspect has previously been arrested . . . is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop”… . * * *

The fact that the officers observed [Thomas] and Brown running does not elevate the level of suspicion. Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion … . The police did not observe conduct indicative of criminality, nor did they even possess information that a crime had occurred in the area. People v Thomas, 2014 NY Slip Op 00291, 1st Dept 1-16-14; same result in People v Brown, 2014 NY Slip Op 00292, 1st Dept 1-16-14

 

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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14

 

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Police Did Not Have Reasonable Suspicion of Criminal Activity, Defendant Had Right to Ignore Police Command to Stop

In a full-fledged opinion by Justice Richter, the First Department reversed the denial of defendant’s motion to suppress.  After a police officer stopped a vehicle (a Lexus), the officer saw the defendant approach the vehicle on foot, receive a bag from the driver, and walk away.  The defendant was then ordered to stop:

After pulling the driver of the Lexus over for a traffic infraction, Detective Mongelli observed his nervous demeanor, and learned that his license had been revoked. The detective then saw defendant arrive at the Lexus, receive a black bag from the driver, and walk away. These observations provided, at most, a founded suspicion of criminal activity. … In response to this founded suspicion that criminal activity was afoot, Detective Mongelli was permitted to conduct a common-law inquiry. But the police actions here went beyond a level two intrusion and constituted a level three stop and detention.  * * * Furthermore, the detective’s command to “turn the bag over” constituted at least a level three intrusion, requiring reasonable suspicion. * * *

It is well established that a citizen has a right not to respond to law enforcement inquiries and to walk away from the police …[.] [T]he Court of Appeals reaffirmed this principle and described an individual’s “right to be let alone” as the distinguishing factor between the level of intrusion permissible under the common-law right to inquire and the right to make a forcible stop. The Court reasoned that “[i]f merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion . . . the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified” … . The Court concluded that to elevate a level two inquiry to a level three stop, the police must obtain additional information or make additional observations of suspicious behavior sufficient to establish reasonable suspicion … . Because no such additional information or observations existed here, the police lacked reasonable suspicion to justify the seizure that occurred. People v Major, 2014 NY Slip Op 00197, 1st Dept 1-14-14

 

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Dismissal of Slip and Fall Case at Summary Judgment Stage Was Premature Where Relevant Evidence Is Entirely Within the Control of the Defendants

The Third Department determined summary judgment granted to the village and county in a slip and fall case should have been denied.  Plaintiff tripped on patched pavement on an approach to a bridge.  There was a question of fact whether the county or the village was responsible for repairs in that area.  Because the information regarding the repairs was totally beyond the control of the plaintiff, dismissal at the summary judgment stage was premature:

…[P]laintiffs have not produced any direct evidence that either the County or the Village performed the patching that plaintiffs’ expert says caused plaintiff’s injury.  Notably, however, neither defendant produced written policies, repair logs, inspection reports or other documentation – other than the survey – to support their respective claims; both deny that any pertinent records exist and rely exclusively upon the testimony of their officials.  The pertinent facts are entirely outside plaintiffs’ knowledge and within the exclusive knowledge of the parties moving for summary judgment – a circumstance in which summary judgment is inappropriate … .  In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose defendants’ summary judgment motion – that is, the inference that, given the claim of each defendant that the other bears responsibility for maintaining the bridge approach, and the dearth of evidence that any other entity has such responsibility or authority, one of them must have performed the repairs that allegedly caused plaintiff’s accident … .   In these circumstances, “[a]lthough plaintiffs clearly will bear the burden of proof on the issue at trial, they raised sufficient issues of fact in the context of [these] summary judgment motion[s] to warrant having the circumstantial evidence and defendants’ credibility concerning the [creation of the defect] tested by cross-examination and assessed by the trier of fact”… . Guimond v Village of Keeseville, 515869, 516320, 3rd Dept 1-9-13

 

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No Probable Cause to Search Car Interior After Occupants Were Out of the Car and Patted Down

The Second Department determined the police officer who stopped the car in which defendant was a passenger did not have probable cause to search the interior of the car after the occupants were out of the car and had been patted down.  The court explained the relevant law:

” [A] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his [or her] own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself [or herself] from harm'” … . Therefore, “absent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . A “narrow exception” to this rule exists in circumstances where:

” following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officer’s safety sufficient to justify further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon'”… . People v Baksh, 2014 NY Slip Op 00112, 2nd Dept 1-8-14

 

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Showup Identification of the Hand-Cuffed Defendant Made in the Police Station Parking Lot 90 Minutes After the Crime Should Have Been Suppressed

The Fourth Department reversed defendant’s conviction and sent the matter back for a Wade hearing to determine whether the eyewitness had an independent basis for his in-court identification of the defendant.  The show-up identification made by the eyewitness was deemed invalid and should have been suppressed:

…[D]efendant contends that County Court erred in refusing to suppress showup identification testimony with respect to him.  We agree. “Showup identifications are disfavored, since they are suggestive by their very nature” …. .  Here, the showup identification procedure was conducted in the parking lot of a police station, approximately 90 minutes after the occurrence of the crime, while defendant was handcuffed and while uniformed police officers and ambulance personnel were in the parking lot.  The totality of the circumstances of this showup identification procedure presses judicial tolerance beyond its limits …, and we conclude under the facts and circumstances of this case that the showup identification procedure was infirm… .  People v Burnice, 1343, 4th Dept 1-3-14

 

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Hearsay Statements Exonerating Defendant Properly Excluded as Not Meeting the Reliability Requirement for a “Statement Against Penal Interest”

Over a dissent, the Fourth Department determined the accomplice’s hearsay statements exonerating the defendant were properly excluded from evidence because they did not meet the “reliability” requirement for “statements against penal interest:”

We … note that the Court of Appeals has recently reiterated that there are four components to the declaration against penal interest exception to the hearsay rule: “(1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability” ….  Jerome Prince, Richardson on Evidence sets forth a fifth component, i.e., that the declarant “had no probable motive to misrepresent the facts” (Jerome Prince, Richardson on Evidence § 8-403 [Farrell 11th Ed 2008]).  To the extent that component should be part of our calculus here, we conclude that it weights our determination even more heavily in the People’s favor. People v McArthur, 1249, 4th Dept 1-3-14

 

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In a Neglect Proceeding, the Review of Sealed Documents by the Evaluating Psychologist Required that His Testimony Be Entirely Discounted

In a neglect proceeding, the Third Department, in the full-fledged opinion by Justice Spain noted the evaluating psychologist’s testimony must be entirely discounted because the psychologist reviewed sealed documents to which he should not have had access:

…Steven Silverman, [the evaluating psychologist] reviewed not only the subject reports, but also many of the other juvenile delinquency records that were properly – and undeniably – sealed under Family Ct Act § 375.1.  Although it is unclear how Silverman came into possession of the sealed materials, his review of such documents plainly was error – as was his review of the subject reports, the latter of which Family Court and counsel expressly agreed would not be made available to him.  As Silverman clearly reviewed a multitude of documents to which he should not have had access, and as there is no meaningful way to gauge the impact of those materials upon the opinion he ultimately rendered, we agree with respondent that Silverman’s testimony should be discounted in its entirety.  Matter of Dashawn Q…, 2013 NY Slip Op 08565 [114 AD3d 149], 3rd Dept 12-26-13

 

 

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